Back
SUPREME COURT OF INDIA
Ashok Bhan, Dalveer Bhandari, JJ.
Rochiram and Sons - Petitioner
Versus
Union of India (UOI) and Ors - Respondent
CA No. 6702 of 2002
Decided On : 24-04-2008
Customs Act, 1962 - Sections 74 and 129DD - Duty Entitlement Pass Book - Claim for duty drawback - A show cause notice was issued to Assessee as to why duty drawback claimed be not rejected on ground that goods were not easily identifiable - Reply to show cause notice was given - Authority - Original vide his order October rejected claim of Assessee on ground that goods were not identifiable on physical examination - Being aggrieved Assessee filed an appeal before Commissioner - Commissioner by his order February accepted appeal and remanded matter to assessing officer for de nove consideration - Second show cause notice was issued proposing to deny duty drawback claim - In addition to ground regarding identification of parts an additional ground was taken in second show cause notice as to why duty drawback claim be not rejected as Appellant had not paid duty in cash but by way of debit in DEPB - A detailed reply was submitted - Held, Case parts imported by Assessee were re – exported - Once imported parts which were found to be defective/unusable are re - exported Assessee became entitled to either refund of duty if paid in cash or adjustment of duty if paid by way of debit in DEPB book either by reversing entry or by issuing a fresh DEPB book as provided in public notice June - Public Notice June is procedural in nature and it does not make any substantive change in policy - Procedural laws cannot be equated with substantive laws - Substantive laws are generally not retrospective unless specified to contrary by Legislature - Insofar as procedural laws are concerned they may be retrospective unless shown to contrary - Otherwise also once imported parts which were found to be defective are re-exported Assessee under policy itself without reference to public notice would be entitled for adjustment of duty paid by way of adjustment in DEPB - Revenue cannot be permitted to take stand that it would not refund duty as it was not paid in cash or deny adjustment in DEPB book after goods have been re-exported - Appeal Accepted
ORDER :
1. Assessee - Appellant (hereinafter referred to as the "Assessee") imported watch parts for use in the manufacture of wrist watches. Import duty in the sum of Rs. 11,79,199 was imposed. Assessee did not deposit the import duty in cash but made a debit in the Duty Entitlement Pass Book (for short "DEPB"). Some of the parts imported were found to be defective/unusable. Assessee applied for re - exporting the same which was allowed. After re - export, Assessee filed a claim for duty drawback of Rs. 11,79,199 under Section 74 of the Customs Act, 1962.
2. A show cause notice was issued to the Assessee as to why the duty drawback claimed be not rejected on the ground that the goods were not easily identifiable. Reply to the show cause notice was given.
3. The authority - in - original vide his order dated, 13th October, 1999 rejected the claim of the Assessee on the ground that the goods were not identifiable on physical examination. Being aggrieved, Assessee filed an appeal before the Commissioner (Appeals). Commissioner (Appeals) by his order dated, 14th February, 2000 accepted the appeal and remanded the matter to the assessing officer for de nove consideration.
4. A second show cause notice was issued proposing to deny the duty drawback claim. In addition to the ground regarding identification of parts, an additional ground was taken in the second show cause notice as to why the duty drawback claim be not rejected as the Appellant had not paid the duty in cash but by way of debit in DEPB. A detailed reply was submitted.
5. The Assessing Authority by his order dated, 25th July, 2000 held, that parts were identifiable as the central excise authorities had certified identity of parts. He, however, rejected the claim of duty drawback on the ground that the Assessee had not paid the duty in cash but by way of debit in DEPB.
6. Assessee, being aggrieved, filed appeal before the Commissioner (Appeals).Before the Commissioner (Appeals), representative of the Assessee submitted that they are not pressing the claim of duty drawback. However, as the goods had been re - exported, a request was made to issue a certificate which would enable them to approach the Director General of Foreign Trade to obtain a new DEPB book/re - crediting the debit made in DEPB book.
7. For this reliance was placed by them upon the Public Notice No. 16 (RE.00)/1997-2000 dated, 30th June, 2000 wherein following paragraph 7.50A was inserted w. e. f. 30th June, 2000 in the Hand Book (Vol.1)(RE.00) 1997-2000 which is reproduced below:
8. The Appellate Authority rejected the prayer of the Assessee for issuance of a certificate on the ground that Public Notice dated, 30th June, 2000 would not be applicable to the case of the Assessee as the imported parts were re - exported vide shipping bill dated, 16th July, 1999, i.e., prior to the issuance of the public notice dated, 30th June, 2000.
9. Assessee thereafter filed a revision before the Joint Secretary, Government of India under Section 129DD of the Customs Act, 1962 which was rejected. Appellant then filed a writ petition in the High Court which has been dismissed by the impugned Order.
10. It is a cardinal principle of law, which has been settled by a Bench of seven J
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
